AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
23
Court of Criminal Appeal 8 December 2017

Berryman v R

[2017] NSWCCA 297

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
APPEALS PROCEDURE POINT NOT TAKEN AT FIRST INSTANCE APPLICATION REFUSED CRIMINAL LAW SENTENCING MANIFEST EXCESS

Citation: Berryman v R [2017] NSWCCA 297
Court: Court of Criminal Appeal, NSW
Date: 8 December 2017
Judges: Leeming JA, Bellew J, Lonergan J

Background

The appellant pleaded guilty at the Central Local Court to six offences arising from three separate incidents over a single day in July 2015. The offences included two counts of aggravated indecent assault on a 13-year-old relative, armed robbery of a convenience store worker, aggravated entry of a dwelling knowing people were present, common assault, and property damage.

The District Court sentenced the appellant to an aggregate term of 11 years and 3 months, with a non-parole period of 7 years and 4 months. The sentencing judge set indicative sentences for each offence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and applied a 25 per cent discount to each indicative sentence to reflect the early guilty plea.

The appellant sought leave to appeal on the sole ground that the aggregate sentence was manifestly excessive. At the outset of the appeal hearing, counsel also made an oral application for the appeal to be heard by a court of five judges, relying on a recent divided decision of the Court of Criminal Appeal concerning how the guilty plea discount should interact with aggregate sentencing.

  • Whether the appeal should be adjourned to a court constituted by five judges, given a recent divided decision on the application of the guilty plea discount to aggregate sentences.
  • Whether the indicative sentences for each offence were individually manifestly excessive.
  • Whether the notional accumulation of those indicative sentences produced an aggregate term that was manifestly excessive, having regard to the totality principle.

Decision

Application for a five-judge bench. The Court refused the oral application to adjourn to a five-judge bench. The point had not been raised at first instance, had not been developed in written submissions, and counsel had provided notice only late the previous evening. The Court noted that a matter is not suited to enlargement simply because a recent divided decision exists on a related question, particularly where the point has not been properly prepared and argued.

Manifest excess in the indicative sentences. The Court found no error in the individual indicative sentences. Each reflected an appropriate assessment of the objective seriousness of the relevant offending, and the 25 per cent guilty plea discount was correctly applied to each.

Manifest excess in the aggregate sentence. The Court accepted that the aggregate sentence of 11 years and 3 months was manifestly excessive when the total criminality of all offences was considered together under the principles in Cahyadi v R [2007] NSWCCA 1. Even where individual indicative sentences are unimpeachable, their notional accumulation can produce an overall sentence that does not fairly reflect the whole of an offender's conduct. That was the position here.

Resentencing. The Court retained the indicative sentences and the 25 per cent guilty plea discount. It also upheld the finding of special circumstances, given this was the appellant's first time in full-time custody. The Court reduced the aggregate term to 10 years with a non-parole period of 6 years, commencing on 12 July 2015.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 12 October 2016 quashed and replaced with an aggregate sentence of 10 years commencing 12 July 2015, with a non-parole period of 6 years.
  • The appellant is eligible to apply for parole on 11 July 2021.

Key Takeaways

  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), even correctly assessed indicative sentences can, when notionally accumulated, produce an aggregate term that is manifestly excessive and must be reduced to reflect total criminality.
  • The Court of Criminal Appeal confirmed that the totality principle, as articulated in Cahyadi, operates as a distinct check on aggregate sentences, independent of the validity of the individual indicative components.
  • An oral application to refer a matter to a five-judge bench will face significant difficulty where the point was not raised at first instance, was absent from written submissions, and notice was given only hours before the hearing.
  • Special circumstances justifying an adjusted parole ratio may be found where an aggregate sentence represents an offender's first period of full-time custody, consistent with established sentencing principles.
  • A guilty plea discount applied at the indicative sentence stage does not, without more, insulate an aggregate sentence from a challenge on grounds of manifest excess in the overall term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 61M, 97, 111, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 33, 53A
- Criminal Appeal Act 1912 (NSW), s 3

Cases
- Cahyadi v R [2007] NSWCCA 1
- PG v R [2017] NSWCCA 179
- Elsaj v R [2017] NSWCCA 124
- Krivosic v R [2017] NSWCCA 167
- Linggo v R [2017] NSWCCA 67
- Xue v R [2017] NSWCCA 137
- Kerr v R [2016] NSWCCA 218
- McGeown v R [2014] NSWCCA 314
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Nguyen v The Queen (2016) 256 CLR 656
- Johnson v R [2004] HCA 15
- Mill v The Queen (1988) 166 CLR 59
- TYN v R [2009] NSWCCA 146
- R v MAK; R v MSK [2006] NSWCCA 381
- Obeid v R [2017] NSWCCA 221
- R v Holder; R v Johnston [1983] 3 NSWLR 245
- Clinch v R (1994) 72 A Crim R 301